H1B, F1, H4 EAD, Other Visas Updates in Fall 2018 Regulatory Agenda

Similar to previous year Fall 2017 Regulatory Agenda , US Federal Government published their Fall 2018 Regulatory agenda that outlines their priorities on various regulations that are planned for the next upcoming months. Our focus from the fall regulatory agenda is on topics tied to international students and professionals. So, we will cover priorities of DHS and USCIS around those visa types like H1B, F1, H4 and other visas.

Summary of Fall 2018 Regulatory Agenda for H1B, F1, H4, and Other Visas:
In general for the most part, many of these agenda items were already there in Spring 2018 Regulatory Agenda, there are few additions and updates regarding the old ones with their timelines changed now. Let’s look at each of them.

H1B Visa Program Changes – Lottery Changes, Pre-registration:

Official Title of Rule : “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens”. ( minor change in title from Spring 2018 agenda)

Summary : This appeared in Spring 2018 agenda as well and looks pretty similar. DHS is trying to revive its original 2011 regulation H1B Visa Cap Registration proposing this agenda item as they have seen excessive amount of demand for the H1B workers that is more than the numeric limitation. The goal of this rule is to properly manage the process of accepting applications and lottery process. They suggest that the rule may include change in selection process as per the Buy American, Hire American Executive Order by Trump . H1Bs could be potentially awarded to most skilled or highest paid candidates in H1B pool. One additional info added is that in the new process, students with Masters degree from US schools, may have higher probably to get selected in new H1B process. No additional details are given though. They say that with pre-registration process and up-front cap selection process, it will reduce the extra burden and upfront cost for employer as only the ones given a cap number can prepare and file H1B petition.

Current Status & Impact : This rule is in proposed rule stage, there was no update on this over this since Spring 2018 agenda was published. In Spring 2018 agenda, this had July 2018 as the date for NPRM, but never went anywhere. It is interesting to see a new clause on giving more priority for US Master’s degree students, we need to see details. There are few more H1B Visa Bills from Trump Administration that are being discussed in Senate that are planning on increasing the wage rate, etc., nothing moved. If they speed it up, we may see this rule ready for H1B Visa 2020 Season , too early to say.

Official Title of Rule: “Strengthening the H-1B Non-immigrant Visa Classification Program”

Summary : DHS wants to change the definition of the H1B visa program to get the best and brightest talent from foreign countries. As they have noticed abuse of the H1B program around employer-employee relationship, classification of a H1B job, they want to make some changes so that US workers are protected and additional requirements for paying well for H1B holders. DHS wants to ensure all the policies are in-line with their recent Trump executive order of “Buy American and Hire American”. They want to make sure US workers are protected and H1B holders will only supplement US work force. There may be some changes to fees and extra paper work as per USCIS

Current Status & Impact : This was also in Spring 2018 agenda. The NPRM date moved from Jan 2019 to August 2019. They are still evaluating cost vs benefits. There is not much new in here other than DHS’s stance to avoid abuse of the third party worksite, employer-employee relationship and not paid enough, including not working in speciality occupation role. Depending on the things proposed in the rule, it could have a huge impact on the H1B visa program and for all the outsourcing and IT body shop companies. We may not see any of these changes for H1B FY 2020, maybe later.

H4 Visa EAD Removal Proposal by USCIS – November 2018

Official Title of Rule: “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”

Summary : This was also there in Spring Agenda, and continues to be in Fall 2018 Agenda. The overall contention is around 2015’s H4 EAD rule for certain eligible H1B spouses. This rule is to amend/ change that published final rule and remove that EAD eligibility for certain H4 spouses. The primary reason DHS says for the plan to remove H4 EAD is the recently signed President Trump’s Executive Order “Buy American and Hire American” . It states that the DHS Secretary has authority to do as per INA regulations. They say the two potential impacts would be one to employers who have H4 EAD’s employed in the form of labor turnover costs and other is general cost savings ( DHS/ US Economy ??) that would add up by not filing future H4 EADs.

Current Status & Impact : This rule was originally planned in Fall 2017 agenda with NPRM date of Feb 2018, it kept moving, in Spring 2018 agenda it had June, now the NPRM is set for November 2018. This rule comes as an outcome of Trump Administration’s general policy changes and from the legal battle raised by SAVE Jobs USA in court. Check more details at : H4 EAD Removal History Page with full info. The page’s comments has some intense arguments. USCIS plan to take it forward as per their court stance. Many tried to send letter to USCIS, but nothing worked. It may or may not have immediate impact as usually, they do not remove EAD just like that as it will impact current businesses, who employ EAD holders. They will give some time for employers and current EAD holders to adjust by phasing out the expiry. If this passes, it will impact the future H4 holders who have dreams to work on H4. As of now, nothing changes, you can continue to file for EAD, if you are eligible.

B1 / B2 Visitor Visa – Review the criteria for classification

Official Title of Rule: “Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure ”

Summary : There are very little details. All it tells is that DHS would like to plan to amend the regulations for temporary visitors for B1 and B2. The rule will clarify the criteria for B1 or B2 classification of applicants for admission to US. It is mean to make sure there is fair adjudication of petitions and enforcement, including to make the process transparent.

Current Status & Impact : This has a long way to go, as it is planned for next year. I believe, the rule is probably to make the requirements clear and transparent for the visa adjudication. We have little or no details, need to wait and see. As of now, nothing changes. You can apply for B2 US Visitor Visa for your Parents or B1 for work in normal way.

Establish Maximum authorized stay for F1 students and other visa holders.

Official Title of Rule:“Establishing a Maximum Period of Authorized Stay for F-1 and Other Nonimmigrants ”

Summary : This is new rule and was not in previous agendas. Currently, if you enter US on F1 visa, CBP officer puts in D/S meaning Duration of Stay and does not have an end date. It means as long as you maintain your status, you can stay in US. (Read US Visa vs Status). DHS would like to change this and have a specified end date like for H1B or L1 visas. The reason for doing this is to reduce the overstay rates for non-immigrant students. This will have impact on the cost as it involves many parties and will take time. Not many details are in the rule at this point.

Current Status & Impact : This rule has a long way to go as well, as it is planned for next year August 2019. Nothing changes for F1 students or other visa holders now. But, it could have an impact on how long students stay within US after graduation or OPT.

Efficient Green Card Processing times

Official Title of Rule:“Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage ”

Summary : This is new rule and is intended to reduce the processing times of Green Card. The rule targets to increase efficiency in processing of Application for Permanent Residence or Adjustment of Status using Form I-485 and reduce fraud filings. DHS plans to remove the concurrent filing of visa petitions and form I-485 and plans to propose changes to appropriate dates when they can file I-485 and for other ancillary benefits.

Current Status & Impact : Nothing changes for now, this is targeted to reduce the long wait times and fraud in filing green petitions. There are no specific details on how this will all work, they say that they would like to use the data efficiently and remove the concurrent filing. Not many details at this point. But, it has a long way to go as well as it is targeted for next year September.

Official Title of Rule:“Eligibility Checks of Nominated and Current Designated School Officials of Schools That Enroll F and M Nonimmigrant Students and of Exchange Visitor Program-Designated Sponsors of J Nonimmigrants ”

Summary : This is new rule and is intended to make sure there are enough checks in place to handle students SEVIS Data. Designated School officials (DSOs) and other Responsible Officers (ROs ) have access to all F and M students data. As part of national security, they want to make sure DSOs and ROs go through checks and ensure they get security clearance to access the data and protect sensitive info as it is related to national security.

Current Status & Impact : This rule has no impact on students or professionals, but targeted towards DSOs to make sure they get security clearance to access students data to avoid potential fraud or criminal activities.

Fee Schedule : Also, as like in every regulatory agenda, there is an item in Fall 2018 agenda to review fees and operations cost of USCIS to check, if there needs to be any changes to fee.

Rules that were in Spring 2018, but removed in Fall 2018Regulatory Agenda.

Official Title of Rule : “Practical Training Reform“

Summary : This rule is no longer there. It was in Spring 2018 agenda. It was originally planned with NPRM for October 2018. In general, the rule was proposed to address the abuse of the CPT and OPT Work Options by F visa and M visa students that is impacting the American workers.

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Comments ( 11 )

H1B Out of CAP:- I had Valid H1 Till Dec 2017 and Did not travel or not get it stamped sue to lack of projects in my organization. Can I apply for a extension from offshore now? Will they considered it as out of CAP? Please let me know.

Hi Saurabh & Admins, Me,my wife and my kid h1,h4 expiry is till oct 2020. Now I am filing for amendment in normal processing mode which means it will take almost 6 months for my case to process. Now if my case get approved for say 1 year what happens to my originally valid 1-94 which is is approved till 2020. If I get more approval say 3 years does only my I-94 gets extended but not my dependents. If I get 1 year approval only does my I-94 validity reduces and in that same case what happens to my dependents original I-94. Can you please respond to my query.